Appeal, No. 114, Jan. T., 1953, from decree of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1951, No. 4856, in case of Maria DiGiuseppe v. Gaetano DiGiuseppe. Decree affirmed.
Joseph Alessandroni, for appellant.
Charles P. Mirarchi, with him Mirarchi & Mirarchi, for appellee.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an appeal from a decree in equity which ordered defendant to specifically perform a written agreement for the sale of certain realty.
On April 21, 1951, plaintiff and defendant, who were at that time respectively wife and husband, entered into a written agreement to convey to plaintiff premises at 1410 South Juniper Street and 1917 South Mole Street, Philadelphia, which they owned as tenants by the entireties. The price agreed upon was $12,500, and the proceeds from the sale were to be divided equally between them. At the time the agreement was signed and thereafter, plaintiff paid to defendant deposits totaling $250 on account of the purchase price. The agreement provided that the sale was to be made to plaintiff "... free and clear from any right which... [defendant] might have in the real estate of his wife, by any law, statutory or common,...". The agreement further provided: "Settlement to be made on or before September 21st, 1951, and said time is hereby agreed to be the essence of this agreement.".
At about the same time the agreement was entered into, a proceeding for divorce was instituted, and subsequently
the divorce was granted on October 29, 1951. In the divorce action and in the real estate transaction the defendant-husband was represented by Angelo L. Scaricamazza, a member of the Philadelphia Bar. The chancellor found as a fact that the defendant left the real estate transaction entirely "up to him". On June 18, 1951, Charles P. Mirarchi, Jr., attorney for plaintiff in the purchase of the properties, notified defendant's attorney by letter that plaintiff was ready to consummate the sale at any time at the convenience of defendant and his attorney. Defendant's attorney was of the opinion that defendant could not convey clear title until after the divorce was granted and told plaintiff's attorney that when they [the defendant and his attorney] were ready, they would inform plaintiff's attorney. Subsequently plaintiff's attorney on several occasions told defendant's attorney that plaintiff was ready to make settlement. In September 1951, defendant's attorney orally asked for an extension of time until some time in October, when he estimated that the divorce would be granted.
Plaintiff arranged for settlement to take place on October 31, 1951, two days after the divorce was granted. At the appointed time and place, plaintiff, her attorney, counsel for the mortgage company, and defendant's attorney appeared. Plaintiff deposited with the title company the balance due on the properties and completed the settlement in so far as she could. Defendant had been given notice of the settlement a week prior to October 31, 1951, but was not present and did not join in the execution of the deed for the premises. Both before and after October 31, 1951, Mr. Scaricamazza advised defendant to complete the settlement and to ...